MILTON POLLACK, District Judge
A recent column in the Wall Street Journal reported a speech by the Chairman of the New York Stock Exchange in which he facetiously told members of the New York State Bar Association that some of their firms ought to go public, and "offer investors a chance to invest in the litigation boom" that has made corporate legal practise "one of the nation's liveliest and most consistent growth industries". In a similar vein, a partner of a national securities firm said: "It's all part of a growing spirit of contentiousness that's earning for America the title, `the litigious society'."
Now let's see just how discovery procedures and case management are contributing to this reputation.
In his Annual Report on the State of the Judiciary, Chief Justice Warren E. Burger told the Midyear Meeting of the American Bar Association on February 12th:
We must see to it that the pre-trial procedures, under the federal rules, designed to simplify and expedite justice are not manipulated and abused to defeat the high purposes that brought them into being.
The president of the ABA echoed this theme in the Association Journal of February 1978, noting that at the ABA's 1976 conference on "The Causes of Popular Dissatisfaction with the Administration of Justice", a principal topic was the correction of abuses on the use of discovery in complex civil litigation. As a result, he reported, a special committee has now recommended broad based amendments, styled reforms, of the discovery process. First, the scope of permissible discovery would be changed from material relevant to the "subject matter" of a pending suit to material relevant to "issues raised by the claims or defenses of any party". The issues would be identified and defined in mini-pre-trial proceedings and fixed in court orders. Second, only 30 interrogatories would be permitted unless the court orders otherwise. Under the proposals, subsections of questions would be counted as individual questions. Third, unnecessary discovery would be added to the list of abusive tactics already subject to sanctions and more flexibility would be given to the Court in imposing sanctions to obstreperous parties, including the United States.
Underlying these proposed panaceas is the conviction that our pre-trial procedures have acquired the reputation, largely justified, of being hopelessly arcane, unnecessarily complex and prohibitively expensive.
I pause to suggest that limiting discovery to issues to be identified and defined at a mini-pre-trial might easily make undesirable inroads on notice pleading. Flexibility will give way to rigidities of pleading. Once again, technical litigators will have a field day with construction and evasion. We might well be right back to the pleading complexities which were junked in 1938 by the Federal Rules of Civil Procedure in order to dig out cases from byzantine technicalities that obstructed or prevented litigants from reaching the merits and a just result. Let me leave that subject for the moment. Later I will develop a more fundamental attack on the problem.
I pause to give you a short historical review of discovery in the federal courts;
The History of Discovery Before 1938.
In the days before the Federal Rules of Civil Procedure, trial by ambush and secrecy was considered normal in the courts of law. No discovery tools were available to ferret out information about an opponent's claim or defense. The purpose of the pleadings was to identify and define factual issues. One misstep therein could prove fatal to a claim or defense. The word was a talisman.
The equity courts developed a species of discovery in contrast to the absence of discovery rights in the courts of law. Ecclesiastical and canon law courts also created a variety of discovery devices. "Position statements" were required to obtain categorical admissions or denials; "Articles" permitted the perpetuation of testimony for use at trial; and if an adversary had evidence favoring a party he was permitted to secure the documents through "Charge of documents". But, even in the equity courts discovery devices were not available to obtain information on the opponent's claim or defense.
Federal discovery practice between 1872 and 1938 generally followed the procedure of the state in which the Court sat. This led to conglomerate rules to be administered in the federal courts since the procedures of the states varied almost by the number of states in existence.
The Federal Rules of Civil Procedure were adopted by the Supreme Court in 1937 and became effective in 1938. Rule 1 proclaims that their purpose is "to secure the just, speedy and inexpensive determination of every action" in actions at law or suits in equity, thereafter to be denominated civil actions. A new horizon was proclaimed. Civil litigation would henceforth be a search for the truth and this would best be served by a full development of all the facts prior to the trial presentation. Significantly the function of pre-trial "issue focusing", formerly the role of the pleadings, was remodeled around discovery relevant to the "subject matter". Loud protestations against "fishing expeditions" were no longer to preclude a party from inquiring into the facts underlying his opponent's case, as the Supreme Court wrote in Hickman v. Taylor, 329 U.S. 495, at 507, 67 S.Ct. 385, 91 L.Ed. 451 (1947).
The 1938 rules were designed to provide information about an opponent's position as well as the party's own claim or defense. The standard of "materiality" shifted to one of "relevancy".
One set of interrogatories was provided for. The need for prior judicial approval for the use of requests for admissions was eliminated.
Amendments to the 1938 rules in 1946 eliminated the one-set limit for interrogatories so that they could be served in any number and at any time during the case, without judicial approval.
For 32 years document discovery continued to remain subject to judicial consideration and approval. However, following the trend toward elimination of judicial management of the means for discovering facts, and the placement of such management in the hands of the litigants, the requirement for leave of court to obtain discovery of documents was eliminated in 1970. Additionally, the judge no longer ruled on objections to interrogatories. Rather, the requesting party was given the option of seeking a court order to compel a response.
Thus, by successive measures since 1938, federal discovery rules have supplied and now give the parties virtually unlimited management over discovery and its use. It is virtually all left to the parties, limited only by privilege and relevancy standards. The federal rules seemingly have detached the Judge from responsibility, in the first instance, for the fair and orderly management of the discovery process.
Within a span of four decades the federal rules have given the parties virtually unbridled discretion over discovery. According to present rules, the parties decide whether and when to file requests as well as the sequence and frequency of the requests, and, the initiating party has the option whether to move for a response if it is late, inadequate, or objected to. There are seven types of discovery devices set out in the rules, and permission of the Court is required only for mental or physical examinations and written questions; these two present but a small percentage of the total number of discovery devices utilized in federal courts.
The present rules give no express direction to judges either to manage the initiation of discovery or to require compliance with time limits set by the rules.
Judicial case management was not contemplated with the birth and growth of discovery emancipation. However, it has now become clear that to an important degree the courts and the paying public cannot depend on counsel to effectively regulate and police discovery activity; it has assumed a troublesome "runaway" aspect.
The courts of the United States have come to recognize, with ever increasing firmness, that the days of endless pre-trial discovery are over. Mounting abuses of discovery have compelled this recognition and the ensuing action to stop it. The Chief Justice and the Attorney General of the United States have recently added their voices to those of other judges and lawyers who have denounced excessive discovery as seriously compromising, if not precluding, the prompt and fair resolution of disputes in the federal courts. Chief Justice Burger has highlighted the "widespread complaints" of misuse and overuse of pretrial discovery and has significantly noted that the "misuse of pretrial procedures means that `the case must be tried twice'".
Attorney General Griffin Bell recently commented that
When I left the practise in 1961 to go on the bench, the familiar statement of a trial lawyer was that "I am on trial" or "I will be on trial." Upon returning last year it had changed to "I am on discovery" or "I will be on discovery."
Quoting Judge Aldisert, Attorney General Bell concluded
The average litigant is overdiscovered, overinterrogated, and overdeposed.
Inherent in this comment is the recognition that this seriously diminishes the quality of justice in the federal courts. Proper and reasonable discovery under the Federal Rules can promote a full and fair examination of the relevant facts before trial. However, misdirected and unbridled discovery can become an engine of harassment, impeding the administration of justice and inflating tremendously and unfairly the costs of litigation. It tends to delay adjudication unduly, to coerce unfair and uncalled for involuntary settlements and to make of the legal tools a cynical mockery of justice.
Although widespread, the dissatisfaction with the discovery process is directed at a limited field of cases. Few, if any, abuses of discovery exist in connection with ordinary litigation. A vast majority of the civil cases filed do not have any discovery at all — not even one "exchange" of discovery. This majority includes such matters as prisoner petitions, prisoner civil rights suits and appeals from administrative agencies all of which swell the filings. Also, within the majority are the cases terminated by motions, where the legal claims fail to survive the pleadings or the case is dismissed on procedural grounds. Then too there are a significant number which are dropped voluntarily before joinder of issue, for one or another reason, as for example settlements without a discovery exchange in personal injury and cargo damage litigations. It has been estimated that almost one of every nine cases tried does not use some discovery.
Nonetheless, the field of cases in which discovery is subject to abuse is limited only in terms of number of filings. The cases subject to abuse predominate in their demands for judicial attention. The rub occurs in the so-called complex cases. Here the abuse-of-discovery-cry becomes a reality. The complaints in this area are that unnecessary and irrelevant depositions are employed, that staggering and monstrous interrogatories are saddled on opponents; that ulterior purposes are sought to be served, other than meritorious discovery purposes; that information is sought for embarrassment; that the process is being excessively used, out of proportion to the size of the case, to the values involved and to the information to be obtained; that the discovery process is used indefinitely in support of a mere hunch or suspicion of a cause of action or defense. In short, the discovery employed overlooks the fact that it is only a piece of litigation and not a life's work that is being pursued.
Much of the excesses may be due to a lack of economic incentive to curtail discovery. Hours are the criterion of pay for the attorneys on both sides. Those representing defendants proceed on a guaranteed hourly charge. The attorneys for plaintiffs know that, if successful, the starting point of every award of counsel fees must be a calculation of the attorney's services in terms of the time he has expended on the case.
Most judges do not like to become overly involved with discovery matters. The Courts are reluctant to become involved with the factual development of a case. The Courts have by and large either abdicated or lost control of the pre-trial discovery phases of complex cases. Consequently, cases take shape without judicial management. Judges stand aloof and prefer the solitude and loftiness of dealing with "legal" matters, ignoring the cardinal circumstance that the facts invariably shape the legal result — whether through settlement or trial.
The Chief Justice has significantly pointed out that the best response to the nearly pervasive criticism of abusive discovery is, for the trial courts to exercise "the responsibility" to prevent such an abuse. As the ABA Follow-Up Task Force wrote:
[T]he fair and orderly operating of the rules should be a prime and personal responsibility of the trial judge.
The Tenth Circuit in an early opinion clearly stressed this need for strong judicial control in the following language
It is of course the duty of the trial judge to supervise and control discovery; he is the only one who can do it effectively.
The burning question currently is whether a Rule change is needed to limit the scope of discovery to "issues" or whether judicial control — personal supervision and management by the trial Judge — is a more promising approach that must be provided early and often in the discovery process. In my opinion, changing the words of the Rules on scope of discovery and on frustration of the opportunity for discovery will not serve sufficiently. New interpretations will be concocted by fertile brains and imaginations that will again lead to oppression or obstruction.
The more promising possibility to stop runaway discovery or obstruction of legitimate inquiry is to rein in the runaway, and use bridle and spurs effectively; that is, judicial control by the judge who will have to try the controversy and deal with the product of the discovery if and when presented at the trial. The trial Judge is the natural monitor to be looked to. The magistrate who has received broadened powers is the ready adjunct to the busy trial Judge. However, I pause to observe that to consign lawyers to a busy magistrate for management purposes is like an artist leaving it to an apprentice to fill in the outlines and background of a painting.
The suggestion to be made here calls for consideration of method, availability of time and strength in dealing with the subject.
I put to one side, quickly, time availability. Unless time is devoted by the Judge to blueprint and manage the discovery stage he can look forward to being swamped in the trial stage — time devoted early will be saved later manyfold over.
I also put to one side, any question of firmness on the part of the Judge in dealing with the discovery problem. Any weakness here, or surrender to a notion of remaining popular with the Bar by succumbing to lax controls, will be a source of regret to the trial Judge who will later face undigestible masses of accumulated materials that are diversionary, irrelevant and hopelessly entangle the issue to be decided.
The trial Judge and the Court have ample discretion within the framework of the present Rules to take over case management from its inception and to create innovative regulations not inconsistent with the Rules of Civil Procedure. Rule 83 gives the Courts the needed lever to prevent a "runaway" process and to blueprint the discovery phase and manage it from inception to completion. Each district court may make rules not inconsistent with the federal rules and in all cases not provided for by the rules the district courts may regulate their practise in any manner not inconsistent with the federal rules.
Some specific, tried, tested and found to be workable procedures may interest you.
The trial Judge sends for the trial lawyers shortly after it can reasonably be assumed that the pleadings are closed. He sets aside an hour in the morning or after the trial day for such conferences. The parties can be summoned to the meeting by telephone — notices and orders are superfluous. He must be sure to take into account the need to let attorneys have sufficient lead time to have formulated their tentative plans and programs for handling of the case.
He conducts an informal inquiry into the nature of the case and the defense. A thumbnail sketch will suffice to orient the Judge.
In many cases he will be quickly told that one or another counsel has served interrogatories. Vacate them forthwith, without prejudice. Let them be saved for a later time if they really are needed. Interrogatories have become a prime offender in abusive, burdensome, unjustified, limitless, wasteful discovery.
Interrogatories as commonly utilized today in nearly every instance are a device to shirk preparation of a case — they are more often than not "a lazy lawyer's way to obtain evasive answers". The use of the product of interrogatories at trial is virtually nil. How often has anyone read at trial an answer to an interrogatory? You will say — but what about the means to discovery? The answer is that there are quicker and better means — namely — documentary disclosure and oral depositions.
Continuing with the informal conference. The judge inquires what documentary disclosure is needed — and why. He will listen to the responses. Nearly always he will know roughly whether the documentary data is relevant to the case or defense that you have heard. He will be given the resistance factors and the possibilities and impossibilities. In the oral interchange — eyeball to eyeball — it is rare that a lawyer will attempt to go beyond the framework of what his case or defense is about.
The judge will fix a time for compliance based on what he hears of the obstacles to compliance.
The Judge then discusses the plans for depositions — who, on what areas, and when. Availability of witnesses will be mentioned. Unnecessary duplication will be flushed out and tentative agreements can be arrived at, subject to preliminary information which one or the other side will furnish by letter shortly after the conference, to aid his opponent in identifying who he will examine, on what and when.
Letter confirmations between the parties will go forth after the conference to memorialize the arrangements.
Documentary filings, preparation of certificates by counsel, written statements, formal orders and directions — these are really unnecessary and time wasteful to prepare, to read, to administer. The exchanges between counsel will serve adequately. The Judge will be instilling in counsel a sense of responsibility that will serve as a policing agent against harassment and oppression.
One other very important matter. The Judge must make himself regularly available in Chambers to mediate any dispute that arises between counsel. He should arrange to see them in the next day or two after a request for a meeting — informally, without papers — and listen to the controversy. In the vast majority of cases he will resolve the matter orally and on the spot. The lawyers will take care of memorializing the resolution by a simple letter between them — if the oral direction is inadequate in the circumstances. If the question is more formal and requires papers, the conference will have identified the issue to be submitted and briefed. Experience will prove this route to be a rare occurrence.
One die-hard advocate challenged the power of the Court to regulate the sequence of discovery. In a patent infringement suit he was denied the right to use any interrogatories in pre-trial discovery until completion of documentary and oral discovery by deposition, and then only for good cause shown. He pointed to Rule 26(a) which provides that parties may obtain discovery by all the methods there described including written interrogatories, and that unless the Court desires otherwise the frequency of the use of these methods is not limited. Furthermore, he argued that Rule 26(d) provides that "methods of discovery may be used in any sequence" unless the Court orders otherwise, for convenience or in the interests of justice.
Having made his point unsuccessfully to the District Judge, a mandamus petition was filed in the Second Circuit. The Judge responded, at the Court's request, mentioning that petitioner had served a set of 211 interrogatories on 39 legal size typed pages; that their character was overbroad and required excessive detail and that to answer them would require unreasonable time. Moreover, there existed a reasonable alternative method — namely, deposition and documentary discovery. Finally, the Judge mentioned that Rule 26(c) itself states that if justice requires, a party is entitled to protection from annoyance, embarrassment, oppression or undue burden and expense by a Court direction that discovery be had only by a method of discovery other than that selected by the inquiring party.
The Second Circuit agreed with the District Judge. Mandamus was denied.
It goes without saying that in simple, unprotracted type cases the Courts should not burden lawyers with lengthy pre-trial orders, involved discovery briefs, stipulations or magistrates. Simplified meetings for an oral exchange should suffice in the usual case, along with a simple pre-trial order just before trial setting out the agreed and disputed contentions and a statement of the damages by categories with specificity. In a non-jury case, agreed and disputed proposed findings of ultimate fact and conclusions of law should accomplish the needful without pre-trial proceedings or orders thereon.
The popular device of cut-off dates for discovery should yield to a realization of the facts of legal practise in lawyers' offices. In principle, a terminal date for completion of discovery is appropriate. But that necessarily and properly should be mitigated whenever burdensome to the litigants — remember, we federal judges are there for life during good behavior, and it should not be an excessive burden to adjust timetables during that lifetime whether for reasons pertinent to the instant case or other unexpected or unmanageable problems that come upon lawyers or their clients. Rigidity is not essential in the interests of justice.
As we all know, abuse is not confined to the examining party. The rule specifically directs that it is not ground for objection that the information sought will be inadmissible at the trial, if the information appears reasonably calculated to lead to discovery of admissible evidence. The 1970 amendment to Rule 30(c) specifically instructs that all objections are covered thereby and specifically recites that evidence objected to shall be taken subject to the objections, not frustrated and not prevented. It is the examiner's prerogative to require answers to questions objected to — and it is not the privilege of the opponent but of the Court to rule on objections and questions.
Yet, in case after case, the opposing party enjoins silence on the witness where no question of privilege is involved.
Other forms of improper, vexatious and obstructive interference with the progress of examinations abound in transcripts that finally come in for rulings — These violate the letter and spirit of fair and reasonable discovery and impede and delay questioning of witnesses.
A recent order obtained by examining counsel in advance of depositions contained the following provision to forestall any erroneous conceptions on this score during the examination, namely:
all parties are directed that they may not instruct their witnesses not to answer unless there is a privilege objection. See Shapiro v. Freeman, 38 F.R.D. 308 (S.D.N.Y. 1965);
Strengthening sanctions is again to approach the virus with the wrong antidote. Sanctions should be viewed as auxiliary relief, not primary means of control. This seemingly is recognized by the Fifth Circuit in several recent decisions which have set aside, under the rubric of abuse of discretion, sanctions imposed at the District Court level. The Court of Appeals seemingly is telling the Judge below that control of the discovery process begins with prospective judicial oversight, rather than retrospective punishment.
Whenever a proper case is presented for sanctions, one that has arisen while the case is under judicial management and control, the sanctions provided for in the Rules should of course be utilized fully and effectively.
In sum —
The faults of modern discovery methods and devices lie not with the Rules — they can be left flexible. We face a device susceptible to mischief and harassment with concomitant expense, that has been cut loose from judicial case management. That should be remedied. This will not increase the burdens laid on the trial Judge — it will transfer time from other functions in the case and collapse non-litigable issues. The Judge should get involved in the process early, sufficiently and informally. There is no substitute for the regular involvement of the Judge. And to borrow a felicitous thought expressed in Vice-President Mondale's address — judicial case management calls upon us to steer discovery away from the dangers of rigidity, on the one hand, and formlessness, on the other. It is on that theme I close.
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